“Premises” in warrant could only include garage because facts supported it, but it did not justify searching house based on “officer’s experience” of what might be found there

“Premises” in a search warrant includes a garage and the probable cause extended to the garage under the description of the offense under investigation. It did not, however, extend to the defendant’s house based solely on the officer’s conclusion that “it is common” for drugs or drug transaction records to be found in the house. People v. Eirish, 165 P.3d 848 (Colo. App. 2007):

While an officer’s “training and experience” may be considered in determining probable cause, such training and experience cannot substitute for an evidentiary nexus, prior to the search, between the place to be searched and any criminal activity. See United States v. Schultz, 14 F.3d 1093 (6th Cir. 1994); United States v. Benevento, 836 F.2d 60 (2d Cir. 1987), abrogated on other grounds by United States v. Indelicato, 865 F.2d 1370 (2d Cir. 1989); see also United States v. Nolan, 199 F.3d 1180, 1183 (10th Cir. 1999)(“we have never held that the mere observation of repetitive illegal drug activity outside a suspect’s residence by itself is sufficient to establish probable cause for a search of the suspect’s residence”).

A division of this court has found that a companion’s possession of methamphetamine while standing in the defendant’s detached garage did not justify a search of the defendant’s residence. See People v. Bachofer, supra. Likewise, other jurisdictions have found that probable cause did not exist to search a person’s home because visitors were suspected of drug activity. See United States v. Huguez-Ibarra, 954 F.2d 546 (9th Cir. 1992)(no probable cause to search residence for drugs merely because officers observed known drug runners visiting property without observing drug items taken into residence); State v. Thieling, 2000 ND 106, 611 N.W.2d 861 (N.D. 2000)(no probable cause to search residence for drugs merely because some of defendant’s visitors were suspected of drug activity); see also State v. Ratzlaff, 255 Kan. 738, 877 P.2d 397 (Kan. 1994) (although police verified informant’s claim that large-scale drug operation was in progress, no probable cause to search defendant’s residence because no showing that defendant was involved).

The affidavit in this case alleged that during the controlled drug transaction the broker entered only the garage on a rural property. This garage was located fifty to sixty yards from defendant’s home, and the affidavit does not allege any criminal activity in the home itself or by the residents of the home. In addition, the affidavit fails to connect the broker to the residence beyond the officer’s observation of his entrance onto the property. See Mills v. City of Barbourville, 389 F.3d 568 (6th Cir. 2004)(no probable cause because affidavit did not connect residence to illegal activity or even state that person engaged in such activity lived there); State v. Buccini, 167 Ariz. 550, 810 P.2d 178 (Ariz. 1991)(no probable cause to search defendant’s home because lack of evidence linking items sought with the particular suspected criminal activity); State v. Jackson, 380 So. 2d 616 (La. 1980)(even if highly probable that defendant had weapon in residence, search warrant invalid because no evidence of that weapon or the defendant was connected to crime).

Police raided the wrong house at 6 a.m. (336 v. 338). As soon as they realized their mistake, they withdrew without explanation or apology. Under Maryland v. Garrison, they are supposed to withdraw as soon as they realize their mistake. No liability for searching the wrong house, and qualified immunity protects them from suit. Closure v. Onondaga County, 2007 U.S. Dist. LEXIS 8947 (N.D. N.Y. February 7, 2007). Comment: No mention here of the “plainly incompetent” language from Malley v. Briggs. This is a remarkable and unsettling case.

Search incident to a vehicle the defendant had just gotten out of and fled from was proper because there was probable cause to arrest him. United States v. Polanco, 2007 U.S. Dist. LEXIS 8943 (D. V.I. January 25, 2007).*

Where defendant did not request findings of fact and conclusions of law and the trial court did not make any in denying a motion to suppress, the issue could still be determined on appeal from the record of the hearing. Defendant’s wife’s intoxication did not prevent her from consenting on the totality of the circumstances. State v. Hahn, 2007 Ohio 557, 2007 Ohio App. LEXIS 515 (5th Dist. February 7, 2007).*